It’s become a rare, bipartisan issue. But if the president's campaign rhetoric is any indication, the window of opportunity for change may have closed.

Numerous states have taken steps in recent years to reduce punishment for nonviolent offenders and roll back mandatory minimum sentences. They’ve sought to reserve prison space for the worst criminals while stepping up re-entry programs for prisoners returning to their communities. The results have been impressive.

“The states have been the proverbial labs of democracy and shown that it’s possible to reduce crime and incarceration at the same time,” says Adam Gelb, who works on criminal justice issues at the Pew Charitable Trusts.

The reductions in both cost and imprisonment at the state level have drawn the attention of federal lawmakers. Prominent members of Congress, including John Cornyn of Texas and Richard Durbin of Illinois, respectively the majority and minority whips in the U.S. Senate, favor the passage of legislation modifying some harsh federal penalties. Iowa Republican Charles Grassley, who chairs the Senate Judiciary Committee, has reiterated his desire to move on the issue.

It’s clear that criminal justice reform is a rare subject that can attract bipartisan support. But even with backing from the Obama White House, getting a bill through Congress proved impossible last year. It’s still tough for many politicians to support something that appears to be giving criminals a break.

Now the question is what sort of stance the new administration will take. President Trump sought office as a “law and order” candidate, one who would seek to make life tougher for criminals. To a certain degree, it was a throwback to the approach that dominated discussion throughout the 1980s and 1990s, when the driving idea seemed to be locking up criminals and throwing away the key. These are the very policies that the criminal justice reform movement is seeking to rethink.

Supporters of change point out that some of the key players on Trump’s transition team have signed reform pledges, such as Kenneth Blackwell, who headed the domestic policy transition. But Jeff Sessions, Trump’s anointed attorney general, was hostile to criminal justice reform efforts while he served in the Senate. So it’s far from clear where the administration will ultimately land.

The president is committed to the creation of a task force on serious and violent offenses, and has called for mandatory minimum sentences for people who repeatedly enter the country illegally. His rhetoric, at least, suggests skepticism about the idea that the right way to combat crime is shorter but more certain prison terms, which is what the reformers are calling for.

“It’s easy to fall back and say that locking more people up for public safety is a good thing,” says Kara Gotsch of the Sentencing Project, a progressive advocacy group.

In the meantime, states are continuing to press ahead on reforms. Voters in California, New Mexico and Oklahoma cast favorable votes on criminal justice reform ballot measures in November. This year, at least nine states will consider comprehensive bills, including Arkansas, Georgia, North Dakota and Pennsylvania.

“We feel like those are moving forward strongly,” Gelb says, “and are not getting any sense that the election has suggested to people at the state level that there’s any need to return to a more law-and-order type of posture.”

*This appears in the February print issue of Governing, which will be available online later this month.

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